Public officials need to look their constituents in the eye
There’s an old legal maxim that hard cases make bad law. Cases don’t come much harder than the coronavirus pandemic and, sure enough, it’s almost certain to result in bad law.
When Virginia began shutting down last spring, city, county and town governmental officials quickly realized that they were going to be challenged to perform their duties electronically, yet in a public manner allowed under existing rules set forth in the Virginia Freedom of Information Act.
FOIA allows local elected bodies to meet electronically during an emergency to deal with the emergency, but nothing else. Some creative legal opinions were quickly cobbled together to provide a degree of flexibility that worked around that limit. A change will likely be made to FOIA that recognizes the reality of a long-lasting event such as the pandemic and allows government to function during it. That change is generally seen as a reasonable means of addressing the problem.
Far more troubling has been the growing interest in creating a more flexible rule for public officials who find attending meetings inconvenient, and the broadened use of electronics during the pandemic has fueled that interest.
The Virginia Freedom of Information Advisory Council was created by the General Assembly in 2000 to do what its name implies — advise the Assembly on matters relating to FOIA.
From its creation until now, the council has been urged perennially to give members of local public bodies the flexibility to meet electronically when coming to a meeting in person is difficult for them.
Some allowance is already made. A member of any public body can declare a personal emergency and the body can allow that member to participate in the meeting electronically. A quorum of the body still has to be assembled in a public location and no member can use the exemption more than twice a year.
This fall, though, the FOIA Council bowed to pressure to increase the limit to 25% of all meetings for members who declare only that a “personal matter” has come up, a significant departure from personal “emergency.”
That probably would not have been an intolerable change, but the council also endorsed a move to allow any member of a public body unlimited participation electronically if they are caring for a family member with a medical condition that requires the public official’s presence at home.
Thus, a person whose grandmother — or third cousin twice removed — lives with them and needs medical care could run for public office, get elected and never once have to attend a public meeting in person. If they insist on doing that, they might not last more than one term in office, but four years can be a very long time not to see your local representative.
You can drive a Mack truck through an exemption like that, and yet, the FOIA Council, charged with protecting Virginians’ right to know what their governing bodies are doing, approved it by a wide margin, and it will go to the General Assembly, where the prospects for its approval are excellent.
The amendment’s advocates say it will make public service desirable for more people, particularly women who may now be discouraged by requirements that they meet in public regularly when they have in-home obligations. That argument sounds lofty, but the fact is, public service requires commitment by those who would serve, and part of that commitment is to face constituents — publicly and regularly.
It is the needs of the public, not public officials, that must at all times be the underpinning of FOIA policy, and the ability of local residents to sit in the same room and watch their local School Board or Board of Supervisors discuss and vote on matters directly affecting them should be sacrosanct.
That understanding has historically been the basis for the FOIA Council’s view, stated as policy more than a decade ago, that in-person meetings should be the rule rather than the exception. It is deeply disappointing to see the council compromise that principle to this extent.
John Edwards is publisher emeritus of The Smithfield Times. His email address is email@example.com. He was a FOIA Council member from 2000 to 2008.